Can President Obama use 14th Amendment To Raise The Debt Ceiling

Although the Fourteenth Amendment to the Constitution does not say specifically that the President has the power to raise the debt limit, there is a lot of talk recently that he may try to do so. The Amendment says in Section 4.

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” And Section 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Even so President Clinton said that he would use the Amendment to raise the debt Limit bypassing Congress. The ability for the President to bypass Congress in an Amendment that gives the President certain powers but not in section 4.

Section 4 ” is to be conducted by Congress as it is part of the “Power of the Purse” outlined in the Constitution.”

Having said that, Constitutional Lawyers and commentators have a different position, falling mostly on political party lines.

In this article we will consider several positions and let the reader decide. There have already been several well written articles and opinions, many we agree with the conclusions, others we don’t. Rather than penning another article that would use similar citations, we will provide a collage , if you will, of sorts to help the reader come to an informed conclusion.

There is a plethora of case law on the first portions of the Amendment, some even as comical as a Butcher fighting against a monopoly slaughterhouse and seeking protections found within this Amendment. The problem for the last two sections of the Amendment is there is very little case law and only a few articles, most of them recent due to the current crisis. With that, Happy reading.

Some commentators have argued that the 14th Amendment means the government cannot suspend payments and that President Obama can act to keep funding government even without congressional authorization.

Clause four of the amendment, which was passed after the end of the Civil War, reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payments of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

CRS’s experts said that language doesn’t convey any new powers on the president to circumvent Congress when it comes to borrowing or spending.

“There appears to be no basis in the legislative history, or arguably in the structure of the Constitution itself, that can support an executive power to borrow funds,” the research service said in the report, which was released to several congressional offices this week and was reviewed by The Washington Times.

Clinton told The National Memo’s Joe Conason that he would invoke the constitutional option and “force the courts to stop me” if “it came to that” and a deal could not be reached with Congress.

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” Clinton said.

The Obama White House, however, has adamantly denied that the 14th amendment is an option.

“It’s pretty categorical. We’re not exploring this. That’s not an option,” White House Press Secretary Jay Carney said Monday. “There is no mechanism that allows us to get around the fact that on August 2nd, if the measures haven’t been taken, we go into default.”

Clinton said lifting the debt ceiling “is necessary to pay for appropriations already made” by Congress. “You can’t say, ‘Well, we won the last election and we didn’t vote for some of that stuff, so we’re going to throw the whole country’s credit into arrears,” he added.

That’s where the good old text of the Constitution comes in–the actual text, not the mythical snippets that many Americans misremember from eighth-grade civics, and not the truncated redaction that too many lawyers, alas, learn in their first-year Con Law class.

Section Four of the Fourteenth Amendment states, at its outset, that “[t]he validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt.

The Lincoln administration had borrowed freely to finance the war machine. As Reconstruction dawned, white Southerners complained bitterly that they would now be taxed to repay the funds that had been borrowed to defeat their cause. “What, ruin us, and then make us help pay the cost of our own whipping?” one asked a Northern journalist in 1865. “I reckon not.”

Southerners were used to having their way in Congress–they had dominated the institution from 1787 until secession in 1861–and many believed that when their representatives arrived in House and Senate, they would be able to tear up the nation’s IOUs.

Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its “validity … shall not be questioned.” Only one other section of the Constitution–the Thirteenth Amendment‘s proclamation that “[n]either slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction”–is as unqualified and sweeping.

Second, it suggests a broad definition of the national debt: “…including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion.”

From this language, it’s not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients–pensioners, that is–above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question. If Congress won’t pay them, then the executive must.

On the other hand, the language could be seen as simply forbidding outright repudiation, not temporary default. Default on U.S. bonds would, in this analysis, not dispute the “validity” of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, “Listen, I’m good for the money, but I’m a little short right now. Trust me, I will get it to you sooner or later.” That’s not repudiation. But on the other hand, you might think the validity was now at least being “questioned.”

For the Obama administration to adopt the broad reading of Section Four would be bold (and I hasten to say I don’t expect them to do it); but it would hardly be unusual in the recent discourse of presidential power–especially the Republican party’s theory of the presidency.

Former president Bill Clinton said he’d solve the debt crisis Old School Style: just raise the roof. In an interview with the National Memo, Clinton said he believed a deal would be struck before August 2, but if he were in charge, and both sides failed to reach an agreement, he would simply raise the debt ceiling himself using powers granted under the 14th amendment of the Constitution. The amendment says that the validity of the public debt shall not be questioned. Clinton said he’d “force the courts to stop me.”

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” Clinton said.

Clinton argues that raising the debt ceiling is misunderstood to be an effort to spend more, rather than simply–in his opinion–to pay the nation’s debts:

I think [the Gingrich Republicans] figured I’d be smart enough to explain to the American people that they were refusing to pay for the expenses they had voted for when Ronald Reagan and George H.W. Bush were president. And that would make ‘em look bad,” the president said, explaining why he thinks Republicans in the mid-1990s did not force the issue on him the way the current Republicans have on Mr. Obama.

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